Director of Public Prosecutions (Cth) v Gok
[2011] WADC 199
•10/11/2011
| JURISDICTION | : | DISTRICT COURT OF WESTERN AUSTRALIA IN CHAMBERS |
| LOCATION | : PERTH | ||
| CITATION |
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| CORAM | : MARTINO CJDC | ||
| HEARD |
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| DELIVERED |
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| FILE NO/S |
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| MATTER |
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AND IN THE MATTER of property of a person convicted HAYATI JOSEPH GOK
| BETWEEN | : | DIRECTOR OF PUBLIC PROSECUTIONS (CTH) Applicant |
| AND | ||
| HAYATI JOSEPH GOK Respondent | ||
| Catchwords: |
Criminal law - Confiscation of property - Superannuation benefits
Legislation:
Commonwealth Services Delivery Act 1977 (Cth) Crimes (Superannuation Benefits) Act 1989 (Cth)
[2011] WADC 199
Criminal Code Act 1995 (Cth) Public Service Act 1999 (Cth) Taxation Administration Act 1953 (Cth)
Result:
Superannuation order made
Representation:
Counsel:
| Applicant | : | Mr M A Cashman |
| Respondent | : | In Person |
| Solicitors: | ||
| Applicant | : | Office of the Director of Public Prosecutions (Cth) |
| Respondent | : | Not applicable |
Case(s) referred to in judgment(s):
DPP (Cth) v Della-Vedova [2010] NSWC 8
[2011] WADC 199
MARTINO CJDC
MARTINO CJDC: The plaintiff, the Commonwealth Director of Public Prosecutions, has applied under s 17 of the Crimes (Superannuation Benefits) Act 1989 (Cth) for a superannuation order under s 19 of that Act against the respondent, Mr Gok. The application is made by reason of Mr Gok's conviction in the District Court of Western Australia on 13 March 2009 of two offences of dishonestly obtaining a financial advantage by deception, contrary to s 134.2(1) of the Criminal Code Act 1995 (Cth). On 11 August 2009 Wisbey DCJ sentenced Mr Gok to 3 years imprisonment on each charge to be served concurrently, commencing from 13 March 2009, to be released after having served 2 years upon entering into a recognisance in the sum of $5,000.
Section 18(1) of the Crimes (Superannuation Benefits) Act (Cth)
provides that:
In determining an application for a superannuation order in respect of a person, the appropriate court may have regard to the transcript of any proceedings against the person for the offence to which the application relates and to the evidence given in any such proceedings.
Section 18(2) of the Crimes (Superannuation Benefits) Act (Cth)
provides that:
… any finding of fact made by a court in any proceedings for the offence to which the application relates, is prima facie evidence of that fact and the finding may be proved by the production of documents, under the seal of the court, in which the finding appears.
4 Edward William Ley Greaves, a principal legal officer in the Perth
office of the Director of Public Prosecutions (DPP) has sworn an affidavit dated 8 June 2011 in support of the DPP's application. Annexed to that affidavit is a copy of the transcript of the sentencing hearing before Wisbey DCJ on 11 August 2009, including his Honour's sentencing remarks. The DPP has not provided any document under the seal of the court. The provision in s 18(2) that provides that a finding may be proved by the production of a document under the seal of the court is permissive, not mandatory. It does not detract from the provisions of s 18(1) that a court may have regard to transcript. I do have regard to the transcript of the sentencing hearing on 11 August 2009 and any finding of fact made by Wisbey DCJ on the sentencing of Mr Gok is prima facie evidence of that fact.
5 Section 17(1A) of the Crimes (Superannuation Benefits) Act (Cth) provides that if the DPP is authorised to apply for a superannuation order in respect of a person who is convicted of one or more offences and,
[2011] WADC 199
MARTINO CJDC
where the person was convicted of two or more offences, the person was sentenced in respect of those offences to imprisonment for a single term longer than 12 months, or to cumulative terms that together add up to longer than 12 months, the DPP must make the application to the appropriate court.
6 On 23 March 2011 the Minister for Justice authorised the DPP to
apply to the appropriate court for a superannuation order in respect of Mr Gok. Appropriate court is defined in s 2(1). The definition includes within the meaning of the term the court before which the person was convicted of the offence. As Mr Gok was convicted in this court it is the appropriate court for the purposes of s 17(1A). I conclude that the requirements of s 17(1A) are satisfied.
Section 19(1) of the Crimes (Superannuation Benefits) Act (Cth)
provides that:
… where an application is made for a superannuation order in respect of a person, the court must, if satisfied that the offence to which the application relates is a corruption offence, by order declare:
(a) that the person was convicted of a corruption offence; and (b) that this Part applies in relation to the rights of, and benefits paid or payable to or in respect of, the person under any superannuation scheme.
8 Section 19(1) is subject to s 19(2). Section 19(2) applies where a
person is deemed under s 6(1)(b) to have been convicted of an offence. It
has no application in this case.
Corruption offence is defined in s 2(1). It means:
an offence by a person who was an employee at the time which it was
committed, being an offence:
(a)
whose commission involved an abuse by the person of his or her office as such an employee; or
(b)
that, having regard to the powers and duties of such an employee was committed for a purpose that involved corruption; or
(c)
that was committed for the purpose of perverting, or attempting to pervert, the course of justice.
[2011] WADC 199
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10 Section 7 defines an employee as meaning a person employed at the
Commonwealth or by a Commonwealth authority, whether the person is so employed under a law of the Commonwealth or of a state or territory, or under a contract or service or apprenticeship.
11 Between March 2000 and December 2003 Mr Gok was employed by
the Australian Taxation Office (ATO). In November 2003 Mr Gok was working in the GST Client Verification Centre, where his role was to verify business activity statements submitted to the ATO. Mr Gok had access to the ATO's computer system for the purpose of carrying out his duties.
12 In late November 2003 Mr Gok accessed the ATO computer system
and electronically generated BAS forms for two businesses. One was for the business of Azura, purportedly run by Mr Gok's sister Yvonne Grace MacLean. The other was for Green, Green Grass of Home, a business purportedly run by Mr Gok's brother Andrew John MacLean. Each BAS falsely represented that the taxpayer had made a non capital purchase of $1,017,038 and was entitled to a GST refund of $92,458. When the ATO's risk rating engine identified the BAS component of Mr MacLean as requiring verification, Mr Gok intercepted the investigation instruction, allocated the matter to himself and then verified the refund. As a result of the false representations in each of the BAS, Ms MacLean received $92,458 to which she was not entitled on 28 November 2003 and Mr MacLean received the same amount on 5 December 2003. The ATO has not been able to obtain reimbursement of the moneys wrongly paid to Ms MacLean and Mr Maclean.
In his sentencing remarks Wisbey DCJ said of Mr Gok's conduct in committing the offences:
Your conduct was fraudulent and a clear breach of the trust placed in you as an employee of the Australian Taxation Office. It was a deliberate deception that involved an intimate knowledge and use of your employer's computer system, and the interception and frustration of a facility designed to verify and authenticate GST refunds (ts 12-13).
14 Mr Gok was employed at the ATO. Under s 4A of the Taxation Administration Act 1953 (Cth) the Commissioner of Taxation and the Australian Public Sector employees assisting the Commissioner together constitute a statutory agency and the Commissioner is the head of that statutory agency. Under s 22 of the Public Service Act 1999 (Cth) an agency head, on behalf of the Commonwealth, may engage persons as employees for the purposes of the agency. At the time that he committed
[2011] WADC 199
MARTINO CJDC
the offences Mr Gok was employed by the Commonwealth as he had been engaged on behalf of the Commonwealth as an employee for the purposes of an agency. He was an employee within the meaning of that term in s 7 of the Crimes (Superannuation Benefits) Act (Cth).
15 I have quoted earlier in these reasons Wisbey DCJ's finding as to
Mr Gok's offending conduct. In my view that conduct involved an abuse by Mr Gok of his office as an employee at the ATO. The offences were corruption offences within the meaning of that term in s 2 of the Crimes (Superannuation Benefits) Act (Cth).
16 Pursuant to s 19(1) of the Crimes (Superannuation Benefits) Act (Cth), I declare that Mr Gok was convicted of two corruption offences and that pt 2 of the Act applies in relation to the rights of, and benefits paid or payable to or in respect of the person under any superannuation scheme.
Section 21(1) provides that:
Where a court makes a superannuation order in respect of a person all rights of, and benefits payable to or in respect of, the person or a dependant of the person which (being rights or benefits arising out of the person's membership of any superannuation scheme) cease, or cease to be payable, on the day on which the order takes effect and the person ceases to be a member of the scheme on that day.
18 Section 21(5) provides that where a superannuation order is made,
the person in respect of whom the order is made is entitled to be paid
moneys that relate to contributions to the scheme by that person.19 Superannuation scheme is defined in s 2 in relation to a person as
meaning a superannuation scheme (other than a scheme established under a law of a State) under which employer contributions or benefits are paid or payable, or have at any time been paid, by the Commonwealth or a Commonwealth authority to or in respect of the person, and includes any scheme or arrangement under which such contributions are vested in the person.
20 I am required by s 19(3) to work out and specify in the
superannuation order the amount that I think reflects the value of the sum of contributions made by the Commonwealth in respect of Mr Gok under any superannuation scheme plus the accrued interest. Under s 18(3) a certificate signed or sealed by the person's superannuation authority stating that employer contributions or benefits made or payable by the Commonwealth or a specified Commonwealth authority in respect of the person are held in a specified fund under the relevant superannuation
[2011] WADC 199
MARTINO CJDC
scheme and stating the amount that equals the sum of those contributions or benefits as at the specified day plus the amount of interest on those contributions or benefits accrued under the scheme before that day is prima facie evidence of the matters stated in the certificate.
21 Annexed to Mr Greaves' affidavit was a copy of a letter dated
6 May 2011 from the trustee of the Public Sector Superannuation Scheme (PSS Scheme) concerning Mr Gok. It stated that Mr Gok has one membership in the PSS Scheme. His membership commenced on 12 April 1999 due to employment with Centrelink and then a transfer to ATO which was deemed continuous service on 7 March 2000. His membership was preserved on termination of employment on 8 December 2003.
22 The fact that Mr Gok's service was deemed to be continuous service
for the purpose of the superannuation fund does not mean that it was one continuous period of employment. In DPP (Cth) v Della-Vedova [2010] NSWC 8, Harrison J held that the Crimes (Superannuation Benefits) Act (Cth) applies to superannuation benefits under a scheme from the period of employment during which the offences were committed, not to other periods of employment.
23 On 22 September 2011 I granted the DPP an adjournment to provide
further evidence. Mr Greaves has sworn a further affidavit on 8 November 2011. Annexed to that affidavit was a copy of a notice published in the Australian Public Service Gazette on 9 March 2000. That notice stated that Mr Gok was promoted from Centrelink 2 to APS Level 4 with the ATO and that the promotion was made under the Public Service Act (Cth).
24 At the time that Mr Gok was employed at Centrelink the legislation
which provided for Centrelink was known as the Commonwealth Services Delivery Agency Act 1997 (Cth). That Act provided in s 35 that the Chief Executive Officer and the Australian Public Sector employees assisting the Chief Executive Office together constitute a statutory agency and that the Chief Executive Officer is the head of that statutory agency. I have referred earlier in these reasons to s 22 of the Public Service Act (Cth).
25 I find that for the whole of the period of his employment at
Centrelink and the ATO Mr Gok was employed by the Commonwealth, that his employment continued when he was promoted in March 2000 and that his employment at Centrelink and the ATO was one continuous period of employment.
[2011] WADC 199
MARTINO CJDC
26 I conclude that the DPP is entitled to a superannuation order that
applies in respect of the whole of the period of Mr Gok's employment at
Centrelink and the ATO.
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